Decision

Milano Pizza Ltd. v. 6034799 Canada Inc., 2018 FC 1112

The Plaintiff, Milano Pizza Ltd., is the owner of registered trademark No. TMA571,144 for MILANO PIZZERIA and the accompanying Design for use in relation to take-out restaurant services with delivery. ... The Plaintiff commenced an action in this Court alleging that the Defendants have infringed its exclusive copyright and trademark rights in the registered MILANO Design Mark, and that they have also directed public attention to their business in such a way as to cause confusion between their business and that of the Plaintiff. The Plaintiff further alleges that the Defendants have unlawfully passed off their goods and services for those of the Plaintiff, and that they have depreciated the value of the goodwill attaching to the Plaintiff’s registered MILANO Design Mark. ... For the reasons that follow, I have found that there is no genuine issues for trial with respect to the registrability of the MILANO Design Mark under paragraph 18(1)(a) of the Trade?marks Act. Consequently, summary judgment will issue in the Plaintiff’s favour in relation to this issue. I am also satisfied that there is no genuine issue for trial with respect to the Plaintiff’s copyright claim, and summary judgment will issue in the Defendants’ favour dismissing the Plaintiff’s action to the extent that it is framed in copyright. I am, however, satisfied that there are genuine issues for trial with respect to the remaining issues raised by the parties in their pleadings. As a result, the motion for summary judgment will otherwise be dismissed.

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I am a partner at DLA Piper (Canada) LLP practicing in the area of intellectual property. Material on this website are my own views and do not reflect the position of DLA Piper (Canada) LLP, any of its member firms around the world, or any of its clients. IPPractice.ca grew out of my hobby to gather and share interesting updates on intellectual property to friends and colleagues. This website does not provide legal advice, and should not be relied upon. Hope you enjoy the site - Alan Macek